Defences Against Harassment

In a previous blog, we looked into the requirements and steps needed to bring a harassment claim in the Civil Courts. In this article, we will consider the defences available to anyone whom has had a claim of harassment brought against them.

As briefly mentioned in our previous blog, there are three main defences available to a claim of harassment. These are as below:

1. The purported action of harassment was pursued for the purpose of preventing or detecting crime;
2. The purported action was pursued under a law or an enactment to comply with any condition or requirement imposed by anyone under that enactment; or
3. That in the particular circumstance the purported action is held to be reasonable.

The leading case of Hourani v Thomson and Others considered these defences in great detail and considered what is necessary to satisfy each one.

1. Preventing or detecting crime

This is deemed to be a subjective test whereby the harasser believed his/her actions were necessary for the purpose of preventing or detecting crime. The harasser’s decision must be a rational one and it must be the dominant reason for any harassing action. This defence is not available for crimes which have already been tested as it is assumed this has already been dealt with and therefore no crime can be prevented or detected.

Whilst this defence appears to be easily met, it must be the main purpose for the harassment and if there appears to be any other reason, it is likely this defence will fail.

2. Compliance with law or enactment

This defence is available when a defendant was ordered in law to carry out the conduct which is deemed to have given rise to a claim of harassment. Whilst an Order may require certain actions of an individual, that individual must not go beyond this in order to cause further harassment.

3. Reasonable conduct

Reasonable conduct is viewed that such action was reasonable in the particular circumstances. If it is viewed that the conduct in the circumstances was unreasonable, this defence will obviously fail.

The Courts will consider whether the conduct was proportionate in the circumstances and each case is to be assessed individually. The Defendant will be required to prove his/her conduct was reasonable.

A further defence outside of the Protection from Harassment Act 1997 is the right to freedom of speech under the Human Rights Act 1998. Similar to the defence of reasonable conduct, this will be assessed by reference to the circumstances of each case and the Court are to apply the proportionality test. It is possible that freedom of speech may affect other individuals in such way that their human rights become affected, in which case a defence under the Human Rights Act is unlikely to be successful.